Gartenhaus v. Financial Recovery Services, Inc.
- Vincent Briccetti
- 7:20-cv-09900
- U.S. District Court · Southern District of New York
- 1
In Gartenhaus v. Financial Recovery Services, Inc., Judge Briccetti ordered plaintiffs to choose whether to amend their complaint before defendant’s dismissal motion proceeds.
Ester Gartenhaus and Shalom Stern, the plaintiffs, and Financial Recovery Services, Inc., the defendant.
What happened
Gartenhaus v. Financial Recovery Services, Inc. concerns a motion by Financial Recovery Services, Inc. to dismiss the complaint filed by Ester Gartenhaus and Shalom Stern.
The court ordered the plaintiffs to notify it by January 4, 2021, whether they would file an amended complaint or rely on the existing complaint. If they amended, they had to file within 14 days after notifying the court, and the defendant would then have 21 days to respond in one of three specified ways.
Judge Vincent L. Briccetti did not decide the motion to dismiss. He warned that if the plaintiffs relied on the existing complaint, the motion would proceed and the court was unlikely to allow another amendment opportunity to address deficiencies identified in the motion.
The detailed version
- Gartenhaus v. Financial Recovery Services, Inc. · No. 7:20-cv-09900
- Vincent Briccetti
- Dec. 22, 2020
Background
Ester Gartenhaus and Shalom Stern sued Financial Recovery Services, Inc., individually and on behalf of all others similarly situated. On December 21, 2020, the defendant moved to dismiss the complaint.
Order
The court ordered the plaintiffs to notify the court by January 4, 2021, whether they intended to file an amended complaint in response to the motion to dismiss or would rely on the existing complaint.
If the plaintiffs chose not to amend, the motion to dismiss would proceed under the regular schedule. The court stated that it was unlikely to grant the plaintiffs another opportunity to amend to address deficiencies made apparent by the fully briefed arguments in the defendant’s motion. The court cited decisions recognizing grounds on which leave to amend may properly be denied, including undue delay, bad faith, dilatory motive, and futility.
If the plaintiffs chose to amend, they were required to file the amended complaint no later than 14 days after notifying the court. Within 21 days after the amendment, Financial Recovery Services, Inc. could answer, move to dismiss the amended complaint, or notify the court that it would rely on its initially filed motion to dismiss.
Disposition
Judge Vincent L. Briccetti’s order set procedures and deadlines concerning a possible amended complaint. It did not grant or deny the motion to dismiss and did not decide the merits of the plaintiffs’ claims.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.